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Is A Ban On A Book Ever Justified?

In an important judgment on free speech, R.V.Bhasin v. State of Maharashtra,  that is bound to be hotly discussed and debated, and possibly appealed, the Bombay High Court in its special jurisdiction under Cr.PC. sections 95 and 96, has upheld the Maharashtra government's ban on the circulation of the book ISLAM – A Concept of Political World Invasion by Muslims written by one R.V.Basin, Advocate Supreme Court of India. While the full judgement is 150-pages long, and I am yet to absorb its various ramifications, the concluding portion is worth reproducing:

88. It is true that whether the objectionable matter is meant for limited circulation, whether it is to cater to an ignorant, illiterate inflammable mob or educated people would be a relevant consideration and the effect of the words must be judged from the standards of reasonable strong minded firm and courageous men and not those who scent danger in every hostile point of view. It is therefore, necessary to consider who will read the book.

89. The translation of the book is available. The possibility of its falling in the hands of an inflammable mob cannot be ruled out. The way this sensitive topic is handled by the author, it is likely to arouse the emotions or sensibilities of even strong minded people. We have held that criticism of Islam is permissible like criticism of any other religion and the book cannot be banned on that ground. But we have also held that the criticism of Islam is not academic. The author has gone on to pass insulting comments on Islam, Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims. The contents are so interwoven that it is not possible to excise certain portions and permit circulation of the book. We may also mention that at one point of time, when this was discussed, the author declined to excise the book.

90. In view of the above, in our considered opinion the State Government is justified in imposing a ban on the circulation of the book. The application is therefore dismissed.

Also worth reproducing in full are the legal principles based on various case-laws that the judgment lays out, and then examines the current case on, before coming to the above conclusion:

33. Before we deal with the rival contentions, it is necessary to deduce the legal principles from the above judgments. Following are the said principles.

“a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav) AJN

b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav)

c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das)

d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav)

e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval).

f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam)

g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam)

h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)

i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur)

j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.)

k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)

l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court).

m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.)

n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur)

o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A.(Gopal Godse, Special Bench, Bombay High Court).

p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court).

q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)

r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.).

s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.)

t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court).

u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”

Read the full text of the judgment

Given our constitutional provisions, where restrictions on speech under Article 19(2) are permitted -- though certainly not mandated -- it is not surprising that the government notification and the court took recourse to the "public order" caveat and the court's judgment seems to be largely based on two crucial points highlighted above:

1. The translation of the book is available. The possibility of its falling in the hands of an inflammable mob cannot be ruled out &

2. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims.

But the court's judgement leaves me confused: If the book were not translated,  would it then be considered as not likely to incite an "inflammable mob"? And, of course, there is the minor matter of mobs, inflammable or otherwise, not being given to collective readings or spontaneous combustion. Surely the law should be directed towards those who mobilise and incite such mobs?  Besides, if the danger of the potential mobs being inflammable was so real, we should not even be discussing the question of whether or not the intent was malicious or otherwise. My difference with the judgment is not in its characterisation of the intent of the author, but in the reasoning it provides for its conclusions.

In any case, it would be interesting to follow this case should it go to appeal. Also, despite the conditional right to freedom of expression in our constitutional scheme, and the upholding of the ban of this book,  from (2) above it  seems to me, as I have always argued, that there is much hope for the likes of Salman Rushdie and Taslima Nasrin, if they or their publishers were actually to attempt to fight their cases judicially.

In an important judgment on free speech, R.V.Bhasin v. State of Maharashtra,  that is bound to be hotly discussed and debated, and possibly appealed, the Bombay High Court in its special jurisdiction under Cr.PC. sections 95 and 96, has upheld the Maharashtra government's ban on the circulation of the book ISLAM – A Concept of Political World Invasion by Muslims written by one R.V.Basin, Advocate Supreme Court of India. While the full judgement is 150-pages long, and I am yet to absorb its various ramifications, the concluding portion is worth reproducing:

88. It is true that whether the objectionable matter is meant for limited circulation, whether it is to cater to an ignorant, illiterate inflammable mob or educated people would be a relevant consideration and the effect of the words must be judged from the standards of reasonable strong minded firm and courageous men and not those who scent danger in every hostile point of view. It is therefore, necessary to consider who will read the book.

89. The translation of the book is available. The possibility of its falling in the hands of an inflammable mob cannot be ruled out. The way this sensitive topic is handled by the author, it is likely to arouse the emotions or sensibilities of even strong minded people. We have held that criticism of Islam is permissible like criticism of any other religion and the book cannot be banned on that ground. But we have also held that the criticism of Islam is not academic. The author has gone on to pass insulting comments on Islam, Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims. The contents are so interwoven that it is not possible to excise certain portions and permit circulation of the book. We may also mention that at one point of time, when this was discussed, the author declined to excise the book.

90. In view of the above, in our considered opinion the State Government is justified in imposing a ban on the circulation of the book. The application is therefore dismissed.

Also worth reproducing in full are the legal principles based on various case-laws that the judgment lays out, and then examines the current case on, before coming to the above conclusion:

33. Before we deal with the rival contentions, it is necessary to deduce the legal principles from the above judgments. Following are the said principles.

“a) The Notification must state the grounds of the Government’s opinion. (Harnam, Narayan Das, Lalai Singh Yadav) AJN

b) A formal authoritative setting forth of the grounds is statutorily mandatory. Appendix cannot make up for grounds of opinion. (Lalai Singh Yadav)

c) Mere repetition of an opinion or reproduction of the Section will not answer the requirement of a valid notification. (Narayan Das)

d) Grounds must not be stated at learned length. In certain cases a laconic statement may be enough while in others more detailed reasons may be required. Grounds may be brief but cannot be blank. (Lalai Singh Yadav)

e) Grounds of opinion must mean conclusion of facts on which the opinion is based. Grounds must necessarily be the import or the effect or the tendency of the matters contained in the offending publication either as a whole or in portions of it, as illustrated by passages which Government may choose, (Narayan Das’s case where the Supreme Court referred to the Calcutta High Court’s judgment in Arun Ranjan Ghose with approval).

f) The High Court must set aside an order of forfeiture if there are no grounds of opinion because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justified the order. If in such case, the High Court upholds the order, it would mean that the High Court itself made the order which the High Court cannot do. (Harnam)

g) The High Court must set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed it’s opinion justify that opinion. (Harnam)

h) The validity of the order of forfeiture would depend on the merits of the grounds. It is not the duty of the High Court to find out for itself whether the book contained any such matter whatsoever. The High Court cannot make a roving enquiry beyond the grounds set forth in the order. (Harnam)

i) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited. (Baragur)

j) The matter charged as being within the mischief of the relevant sections of the IPC must be read as a whole. One cannot rely on stray, isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning. (Gopal Godse, Special Bench, Bombay High Court.)

k) Section 295-A of the IPC does not penalize any and every act of insult to or attempt to insult the religion or religious beliefs of a class of citizens. There must be a malicious or deliberate intention to outrage the religious feelings of a class of citizens. (Ramji Modi, Balwant Singh, Manzar Khan, Bhagwati Charan Sharma Nagpur High Court, Gopal Godse Special Bench, Bombay High Court.)

l) Intention of the author has to be gathered from the language, contents and import of the offending material. (Baragur, Gopal Godse Special Bench, Bombay High Court).

m) If the purpose of writing the book was a historical research based on a number of reference books and other material, it would be difficult for the State to contend that simple narration of history would promote violence, enmity or hatred. (Varsha Publications, Special Bench, Bombay High Court.)

n) If the allegations made in the offending article is based on folklore, tradition or history something in extenuation could perhaps be said for the author. (Baragur)

o) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under Section 153-A of the IPC that the writing contains a truthful account of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A.(Gopal Godse, Special Bench, Bombay High Court).

p) Section 95(1) of the Code requires that the ingredients of the offences should appear to the Government to be present. Section 95 does not require that it should be proved to the satisfaction of the Government that all requirements of punishing sections including mens rea were fully established. (Baragur, Nandkishore, Special Bench of Patna High Court).

q) The onus to dislodge the prima facie opinion of the Government that the offending publication comes within the relevant offence including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof. (Nandkishore, Special Bench of Patna High Court, approved in Baragur.)

r) It is not necessary to prove that as a result of the objectionable matter enmity or hatred was in fact caused between the different classes. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. (Gopal Godse, Special Bench, Bombay High Court.).

s) For judging what are the natural or probable consequences of the writing, it is permissible to take into consideration the class of readers for whom the book is primarily meant as also the state of feelings between the different classes or communities at the relevant time. (Gopal Godse, Special Bench, Bombay High Court.)

t) Whether the objectionable matter is meant for limited circulation, whether it is to cater to ignorant, illiterate inflammable mob or educated people would be a relevant consideration. (Bhagwati Charan Sharma – Nagpur High Court).

u) The effect of the words must be judged from the standards of reasonable strongminded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. (Ramesh v. Union of India, AIR 88 SC 775, Manzar Khan, Bhagwati Charan Sharma – Nagpur High Court.)”

Read the full text of the judgment

Given our constitutional provisions, where restrictions on speech under Article 19(2) are permitted -- though certainly not mandated -- it is not surprising that the government notification and the court took recourse to the "public order" caveat and the court's judgment seems to be largely based on two crucial points highlighted above:

1. The translation of the book is available. The possibility of its falling in the hands of an inflammable mob cannot be ruled out &

2. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims.

But the court's judgement leaves me confused: If the book were not translated,  would it then be considered as not likely to incite an "inflammable mob"? And, of course, there is the minor matter of mobs, inflammable or otherwise, not being given to collective readings or spontaneous combustion. Surely the law should be directed towards those who mobilise and incite such mobs?  Besides, if the danger of the potential mobs being inflammable was so real, we should not even be discussing the question of whether or not the intent was malicious or otherwise. My difference with the judgment is not in its characterisation of the intent of the author, but in the reasoning it provides for its conclusions.

In any case, it would be interesting to follow this case should it go to appeal. Also, despite the conditional right to freedom of expression in our constitutional scheme, and the upholding of the ban of this book,  from (2) above it  seems to me, as I have always argued, that there is much hope for the likes of Salman Rushdie and Taslima Nasrin, if they or their publishers were actually to attempt to fight their cases judicially.

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